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10 <br />(1) Upon Owner's Representative's certification that fifty percent (50 %) of the <br />Work has been satisfactorily completed Retainage shall be reduced to two and <br />one half percent (2'/z %). <br />(2) Upon Owner's Representative's certification that ninety percent (90 %) of the <br />Work has been satisfactorily completed Retainage may be discontinued. <br />Retainage may be discontinued, at Owner's Discretion, so long as work <br />continues to be completed satisfactorily and on schedule. <br />(iii) Final payment shall not be due to the Contractor until thirty (30) days after Final <br />Completion of the Work, including punch list work, has been satisfactorily completed <br />and an appropriate Affidavit, Indemnification, and Release as required in Section 8(d) <br />below has been received by Owner. <br />b. Should Owner reasonably determine that Contractor has failed to perform the Work related to <br />a Request for Payment, Owner, at its discretion may provide the Contractor ten (10) days to <br />cure the breach. Owner may withhold the accompanying payment without penalty until such <br />time as Contractor cures the breach. <br />(i) Should Contractor or its representatives fail to cure the breach within ten (10) days, or <br />fail to reasonably agree to such modified schedule, Owner may immediately terminate <br />this Agreement in writing, without penalty or incurring further obligation to <br />Contractor. <br />(ii) This section shall not be interpreted to limit the definition of breach to the failure to <br />perform the Work related to a Request for Payment. <br />c. The Contractor has included in the Contract Price and shall pay all taxes assessed by any <br />authority on the Work or the labor and materials used therein. It shall be the Contractor's <br />responsibility to furnish the Owner documentary evidence showing the materials used and <br />sales and use tax paid by the Contractor and each of its subcontractors. <br />d. Should the Owner receive notice that the Contractor has failed to pay a Subcontractor for the <br />Work performed related to a Request for Payment, Owner shall have the authority to withhold <br />payment of the disputed amount until parties resolve their dispute. Failure to pay the <br />Contractor pursuant to this section of the Agreement shall not be deemed to be a breach of the <br />Agreement. <br />6. NON — APPROPRIATION <br />a. Contractor acknowledges that Owner is a governmental entity, and the validity of this <br />Agreement is based upon the availability of public funding under the authority of its statutory <br />mandate. <br />b. In the event that public funds are unavailable and not appropriated for the performance of <br />Owner's obligations under this Agreement, then this Agreement shall automatically expire <br />without penalty to Owner immediately upon written notice to Contractor of the unavailability <br />and non - appropriation of public funds. It is expressly agreed that Owner shall not activate this <br />non - appropriation provision for its convenience or to circumvent the requirements of this <br />Agreement, but only as an emergency fiscal measure during a substantial fiscal crisis. <br />Revised 10/14 4 <br />